<PAGE>
As filed with the Securities and Exchange Commission on September 4, 1997
Registration No. 33-70452
================================================================================
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
AMENDMENT NO. 1 TO
FORM S-8
REGISTRATION STATEMENT
Under
THE SECURITIES ACT OF 1933
--------------------
NEW BRUNSWICK SCIENTIFIC CO., INC.
(Exact name of registrant as specified in its charter)
---------------
New Jersey
(State or other Jurisdiction of 22-1630072
incorporation or organization) (I.R.S. Employer Identification No.)
44 Talmadge Road, P.O. Box 4005
Edison, New Jersey 08818-4005
(732) 287-1200
(Address, including zip code, including area code,
of registrant's principal executive offices)
New Brunswick Scientific Co., Inc.
1991 NONQUALIFIED STOCK OPTION PLAN
(Full title of the plan)
Ezra Weisman, President
44 Talmadge Road, P.O. Box 4005
Edison, New Jersey 08818-4005
(732) 287-1200
(Name, Address, including zip code and telephone number
including area code, of agent for service)
-------------------
Copies to:
Peter D. Hutcheon, Esq.
Norris, McLaughlin & Marcus
A Professional Corporation
721 Route 202-206
P.O. Box 1018
Somerville, NJ 08876-1018
(908) 722-0700
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CALCULATION OF REGISTRATION FEE
- --------------------------------------------------------------------------------------------------------------------------------
Proposed Proposed
Amount Maximum Maximum Amount of
Title of Securities to be Offering Price Aggregate Offering Registration
to be Registered Registered(1) Per Share (2) Price (3) Fees
- --------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Common Stock,$.0625 par value per Share 431,000 $7.00 $3,017,000 $914.24
shares
- --------------------------------------------------------------------------------------------------------------------------------
</TABLE>
(1) In addition, pursuant to Rule 416(c) under the Securities Act of 1933,
this registration statement also covers an indeterminate amount of
interests to be offered or sold pursuant to the employee benefit
plan(s) described herein. This amendment solely increases the amount of
registered shares from 231,000 to 662,000 shares.
(2) Based upon last reported sale price on the over-the-counter-market, as
quoted on NASDAQ on August 29, 1997.
(3) The price is estimated in accordance with Rule 457(h)(1) under the
Securities Act of 1933, as amended, solely for the purpose of
calculating the registration fee and is the product resulting from
multiplying 431,000, the number of additional shares registered by this
Amendment No. 1 to the Registration Statement by $7.00 per share, the
average exercise price of such options.
<PAGE>
TABLE OF CONTENTS
<TABLE>
<CAPTION>
<S> <C> <C>
Item 1. Plan Information....................................................................................... *
Item 2. Registrant Information and Employee Plan Annual Information............................................ *
Item 3. Incorporation of Documents by Reference................................................................ 3
Item 4. Description of Securities............................................................................. **
Item 5. Interests of Named Experts and Counsel................................................................ **
Item 6. Indemnification of Directors and Officers............................................................. **
Item 7. Exemption from Registration Claimed................................................................... **
Item 8. Exhibits............................................................................................... 3
Item 9. Undertakings.......................................................................................... **
</TABLE>
* Separately given to participants. Pursuant to the rules for filing a
Registration Statement on Form S-8, such information is contained in a
document which does not constitute a part of this Registration
Statement but which shall, together with the documents incorporated by
reference in this Registration Statement pursuant to Item 3 of Part II
hereof, constitute a prospectus under Section 10(a) of the Securities
Act of 1933.
** The contents of New Brunswick Scientific Co., Inc,'s Registration
Statement on Form S-8, Registration #33-70452, are incorporated herein
by reference.
PART I
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
Item 1. Plan Information
Omitted.
Item 2. Registrant Information and Employee Plan Annual Information
Omitted.
<PAGE>
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference
THE CONTENTS OF NEW BRUNSWICK SCIENTIFIC CO., INC.'s REGISTRATION
STATEMENT ON FORM S-8, REGISTRATION #33-70452 ARE INCORPORATED HEREIN BY
REFERENCE.
The following documents filed by New Brunswick Scientific Co.,
Inc. (the "Company") with the Commission are also incorporated herein by
reference:
(a) The Company's Quarterly Reports on Form 10-Q for the
quarters ended March 31, and June 30, 1997;
(b) The Company's Annual Report on Form 10-K for the year
ended December 31, 1996; and
(c) The material under the caption "Capital Stock to be
Registered" in the Company's Registration Statement
on Form 8-A under Section 12(g) of the Securities
Exchange Act of 1934 filed with the Commission on
April 13, 1973, which incorporates by reference the
information under "Common Stock" in the prospectus
constituting a part of the Company's Registration
Statement on Form S-1, as amended and effective on
March 14, 1972 (File No. 2-42505).
In addition to the foregoing, all documents subsequently filed
by the Company pursuant to Sections 13(a), 13(c), 14 and 15(d) of the Securities
Exchange Act of 1934, prior to the filing of a post-effective amendment
indicating that all of the securities offered hereunder have been sold or which
deregisters all securities then remaining unsold, shall be deemed to be
incorporated by reference in this Registration Statement and to be part hereof
from the date of filing of such documents. Any statement contained in a document
incorporated by reference in this Registration Statement shall be deemed to be
modified or superseded for purposes of this Registration Statement to the extent
that a statement contained herein or in any subsequently filed document that is
also incorporated by reference herein modifies or supersedes such statement. Any
statement so modified or superseded shall not be deemed, except as so modified
or superseded, to constitute a part of this Registration Statement.
Item 8. Exhibits
4(a) New Brunswick Scientific Co., Inc. 1991 Nonqualified
Stock Option Plan
4(b) Form of Stock Option Agreement under Stock Option
Plan
*4(c) 1995 Amendment to New Brunswick Scientific Co., Inc.
1991 Nonqualified Stock Option Plan
*4(d) 1997 Amendment to New Brunswick Scientific Co., Inc.
1991 Nonqualified Stock Option Plan
*5 Opinion of Norris, McLaughlin & Marcus, P.A.
*23(a) Consent of KPMG Peat Marwick, LLP
23(b) Consent of Norris, McLaughlin & Marcus, P.A.
(included in Exhibit 5)
24 Power of Attorney (included on signature page)
------------------------------------------------------------
*Filed herewith
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933,
the Registrant certifies that it has reasonable grounds to believe that it meets
all of the requirements for filing on Form S-8 and has duly caused this
Registration Statement to be signed on its behalf by the undersigned, thereunto
duly authorized, in the Township of Edison, State of New Jersey on the 3rd day
of September, 1997.
NEW BRUNSWICK SCIENTIFIC CO., INC.
By: /s/ Ezra Weisman
---------------------------------
Ezra Weisman, President
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature
appears below constitutes and appoints David Freedman and Ezra Weisman, and
either of them (with full power in each to act alone), his true and lawful
attorneys-in-fact, with full power of substitution, for him and in his name,
place and stead, in any and all capacities, to sign any and all amendments
(including post-effective amendments) to this Registrant Statement, and to file
the same, with all exhibits thereto, and other documents in connection
therewith, with the Securities and Exchange Commission, granting unto each said
attorney-in-fact and agent full power and authority to do and perform each and
every act and thing requisite and necessary to be done in and about the
premises, as fully to all intents and purposes as he might or could do in
person, hereby ratifying and confirming that all said attorneys-in-fact, or
their substitute or substitutes, may lawfully do or cause to be done by virtue
hereof.
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed by the following persons in the
capacities and on the dates indicated below.
<TABLE>
<CAPTION>
<S> <C> <C>
/s/ David Freedman Chairman of the Board August 26, 1997
- --------------------------------- and Director
David Freedman
/s/ Ezra Weisman President, Chief August 26, 1997
- --------------------------------- Executive Officer,
Ezra Weisman and Director
/s/ Sigmund Freedman Treasurer and August 26, 1997
- --------------------------------- Director
Sigmund Freedman
/s/ Samuel Eichenbaum Chief Financial August 26, 1997
- --------------------------------- Officer
Samuel Eichenbaum and Vice President,
Finance
- --------------------------------- Director ______ __, 1997
Bernard Leon
/s/ Kiyoshi Masuda Director August 26, 1997
- ---------------------------------
Kiyoshi Masuda
</TABLE>
<PAGE>
<TABLE>
<CAPTION>
<S> <C> <C>
/s/ Ernest Gross Director August 26, 1997
- ---------------------------------
Ernest Gross
/s/ Martin Siegel Director August 26, 1997
- ---------------------------------
Martin Siegel
/s/ David Pramer Director August 26, 1997
- ---------------------------------
Dr. David Pramer
/s/ Marvin Weinstein Director August 26, 1997
- ---------------------------------
Dr. Marvin Weinstein
</TABLE>
<PAGE>
NEW BRUNSWICK SCIENTIFIC CO., INC.
1991 NONQUALIFIED STOCK OPTION PLAN
ARTICLE 1
NAME AND PURPOSE
1.1 Name. The name of the stock option plan (the "Plan") shall be the
New Brunswick Scientific Co., Inc. 1991 Nonqualified Stock Option Plan.
1.2 Purpose. The Plan is intended to enable New Brunswick Scientific
Co., Inc. (the "Company") to attract and retain experienced and exceptional
executive employees with managerial and analytical talent, upon whom, in large
measure, the sustained progress, growth and profitability of the Company
depends. Accordingly, the Plan is intended to provide them with favorable
opportunities to purchase equity in the Company through the grant of
nonqualified stock options (the "Options"), thereby encouraging them to
contribute to the Company's future success and prosperity, and enhancing the
value of the Company for the benefit of its other share owners.
ARTICLE 2
SHARES SUBJECT TO THE PLAN
2.1 Number of Shares. The stock subject to options issued under this
Plan shall be shares of the Company's Common stock, par value $.0625 per share
(the "Shares"). The total amount of Shares with respect to which options may be
granted shall be 400,000 shares, subject to adjustment in accordance with the
provisions of Section 2.2. Shares issuable under the Plan shall be authorized
but unissued Shares of the Company, including treasury shares. If any Option
granted under the Plan expires or otherwise terminates, in whole or in part,
without having been exercised, the Shares subject to the unexercised portion of
such Option shall be available for the granting of Options under the Plan as
fully as if such Shares had never been subject to an Option.
2.2 Adjustments. The number of Shares that may be issued under the
Plan, as stated in Section 2.1, and the number of Shares issuable upon exercise
of outstanding Options under the Plan (as well as the exercise price per share
under such outstanding Options shall be equitably adjusted by the Committee
(referred to in Section 3.2) to reflect: (a) any stock dividend or stock split,
(b) any subdivision or combination of outstanding shares or (c) any other
reorganization or change in the stock or capital structure of the Company in
connection with which the Company issues additional shares of capital stock
without receiving any consideration therefor.
ARTICLE 3
ADMINISTRATION OF PLAN
3.1 Stock Options. As used in the Plan, the term "Options" or
"nonqualified stock options" means options that are not intended to qualify as
incentive stock options under Section 422A of the Internal Revenue Code of 1986,
as amended from time to time (the "Code").
3.2 Committee Authority in General. Except as otherwise provided below,
the Plan shall be administered by a Stock Option Committee (the "Committee")
appointed by the Board of Directors of the Company (the "Board"). The Committee
shall have full authority to establish, from time to time, such rules and
regulations, not inconsistent with the provisions of the Plan, for the proper
administration of the Plan, and to make such determinations and interpretations
under or in connection with the Plan and the Options granted hereunder, as it
deems necessary or advisable. All such rules, regulations, determinations and
interpretations shall be binding and conclusive upon the Company, its
stockholders, employees (including former employees), and directors, and any
related corporation, and upon their respective legal representatives,
beneficiaries, successors and assigns and upon all other persons claiming under
or through any of them.
3.3 Committee Members. The Committee shall be composed of at least two
(2) persons who are members of the Board of Directors. No member of the
Committee may receive any options under the Plan, and no member may have
received any such options for a period of at least one (l) year prior to his or
her election to serve on the Committee. The Board may from time to time remove
members from, or add members to, the Committee. The Board may on its own motion,
amend the requirements, for eligibility for service on the Committee as may be
reasonably required, in the judgment of the Board, in order
<PAGE>
to qualify each member of the Committee as a "disinterested person," as defined
in the regulations of the Securities and Exchange Commission pertaining to
Section 16(b) of the Securities Exchange Act of 1934.
3.4 Actions of the Committee. The Committee shall hold meetings at such
times and places as it may determine. A majority of the members of the Committee
shall constitute a quorum for the transaction of business, and a vote of the
majority of those members present at any meeting, or acts approved in writing by
a majority of the Committee, shall decide any question before the Committee.
3.5 Exoneration. No member of the Board or of the Committee shall be
liable for any action or determination made in good faith with respect to the
Plan or any Option granted under this Plan, except those resulting from such
member's gross negligence or willful misconduct.
3.6 Indemnification. In addition to such other rights of
indemnification as they may have as members of the Board or the Committee, the
Company shall defend, indemnify and hold harmless the members of the Committee
against all costs and expenses reasonably incurred by them in connection with
any action, suit or proceeding to which they or any of them may be party by
reason of any action taken or failure to act under or in connection with the
Plan or any Option granted hereunder, and against all amounts paid or payable by
them in settlement thereof provided such settlement is approved by independent
legal counsel selected by the Company or paid or payable by them in satisfaction
of a judgment in any such action, suit or proceeding, except a judgment based
upon a finding of bad faith on the part of the Board or Committee member seeking
indemnification hereunder, provided that upon the institution of any such
action, suit or proceeding a Committee member shall, in writing, give the
Company notice thereof and an opportunity, at its own expense, to handle and
defend the same before such committee member undertakes to handle and defend it
on her or his own behalf.
ARTICLE 4
ELIGIBILITY
The persons eligible to participate in the Plan shall be executive,
managerial, or supervisory employees (except any employee who may be ineligible
as a result of his or her appointment to the Committee) of the Company and its
subsidiary companies who may be designated by the Committee. The persons
eligible to receive Options under the Plan are referred to in this Plan as
"Eligible Individuals." The Committee shall have the full discretion and
authority to determine the persons to whom Options shall be granted under the
Plan and to recommend the date of grant and the other conditions thereof,
subject to the express terms of this Plan.
ARTICLE 5
OPTION TERMS
5.1 Price of Options. The purchase price per Share (the "Option Price")
under each Option granted under the Plan shall be determined and fixed by the
Committee in its discretion, but shall not be less than the fair market value of
such Shares on the date of grant of such Option. The fair market value of a
Share on any day shall mean (a) the last reported closing price of a Share as
quoted by NASDAQ and reported in The Wall Street Journal (or other reputable
financial publication, in the event The Wall Street Journal is unavailable); or
(b) if at any time the Company's Common stock is not eligible for quotation on
NASDAQ, such other method of determining fair market value as shall be permitted
by the Code or the rules or regulations thereunder, and adopted by the Committee
from time to time.
5.2 Maximum Exercise Period. The Committee shall fix the term of all
Options, provided that such term shall not exceed ten years from the date of
grant of such Option (the "Expiration Date").
5.3 Installment Exercise. No Option may be exercised, in whole or part,
until one year after the date upon which such Options are granted (the "Grant
Date"). Options shall thereafter become exercisable in installments. Twenty
percent (20%) of the Options granted shall become exercisable one (l) year after
the Grant Date and twenty percent (20%) shall become exercisable each year
thereafter until all Options are exercisable at the end of five (5) years. An
Option may be exercised as to less than the full amount of Shares then available
for purchase under the Option, but must be exercised in multiples of full shares
of stock, rather than fractional shares. An option may not be exercised more
than ten times during the term of the Option.
5.4 Payment. The Option Price shall be payable in cash or by check,
bank draft, or postal or express money order. At the Committee's discretion, all
or part of the Option Price may be paid by delivery of shares of Common stock of
the Company having an aggregate fair market value equal to the portion of the
Option Price not otherwise satisfied in cash or by check. The Committee shall
determine acceptable methods for tendering shares of Common stock as payment
upon exercise of an Option and may impose such limitations and prohibitions on
the use of such stock to exercise an Option as it deems appropriate.
<PAGE>
5.5 Method of Exercise. An Option, or portion of an Option, shall be
exercised by delivery of a written notice of exercise to the Company,
accompanied by payment in full of the purchase price for the Shares with respect
to which the Option is exercised. Until such Shares are issued, the holder of
the Option shall have none of the rights of a share owner. In its discretion,
the Committee may require that the exercise of an Option be conditioned upon the
execution by the optionee of a written election under Section 83(b) of the Code.
5.6 Transferability. No Option shall be assignable or transferable by
an optionee otherwise than by will or by the laws of descent and distribution,
and during the lifetime of the optionee, the Option shall be exercisable only by
him, or in the event of his legal disability by his legal representative.
5.7 Termination of Employment. If an optionee ceases to be employed by
the Company for any reason other than death, voluntary retirement after
attaining age 65 or disability (as described in Section 5.9 below) prior to the
Expiration Date of any Options, such unexercised Option shall terminate as of
the date of such termination of employment.
5.8 Death of Optionee. If an optionee dies while an employee of the
Company and if on the date of death an optionee holds an Option that is not
fully exercised, then for a period of six (6) months after the optionee's death
or the unexpired term of the Option, whichever is less, the Option may be
exercised by the executor or administrator of the optionee or by any person who
acquires the Option from the optionee by bequest or inheritance, to the extent
that the optionee could have exercised such Option on the date of his or her
death.
5.9 Retirement or Disability of Optionee. If an optionee ceases to be
employed by the Company or its subsidiary corporations by reason of voluntary
retirement after attaining the age of 65 or by reason of disability and if on
the date of termination of employment the optionee holds an Option that is not
fully exercised, then for a period of six months after the date of termination
of employment or the unexpired Option term, whichever is less, the Option may be
exercised to the extent that the optionee had the right to exercise such Option
as of the date of termination of employment. If such optionee dies within six
months after the date of termination of employment and if on the date of his
death he held an Option that is not fully exercised, then to the extent and for
the period that the optionee could have exercised the Option under this Section
5.9 had he survived, the Option may be exercised by the executor or
administrator of the optionee or by any person who acquires the Option from the
optionee by bequest or inheritance. A "disability" shall, for all purposes under
this plan, be defined as set forth in Section 105(d)(4) of the Internal Revenue
Code of 1986, as amended.
5.10 Option Agreement and Further Conditions. As soon as practicable
after the grant of an Option, each optionee shall enter into, and be bound by
the terms of, a nonqualified stock option agreement (the "Nonqualified Stock
Option Agreement") which shall state the number of Shares to which the Option
pertains. The Nonqualified Stock Option Agreement shall set forth such terms,
conditions and restrictions regarding the Option not inconsistent with the Plan
as the Committee shall determine. Without limiting the generality of the
foregoing, the Committee, in its discretion, may impose further conditions upon
the exercisability of Options and restrictions on transferability with respect
to Shares issued upon exercise of Options.
ARTICLE 6
MISCELLANEOUS PROVISIONS
6.1 Registration of Shares. The Company may, but shall not be obligated
to, register the Options or the Shares received upon exercise of an Option, or
both, with the Securities and Exchange Commission and any state securities law
commission or agency. In the absence of such registration, both the Options and
the Shares:
(i) will be issued only pursuant to an exemption from registration;
(ii) cannot be sold, pledged, transferred or otherwise disposed of in
the absence of an effective registration statement or an opinion of
counsel satisfactory to the Company that such registration is not
required; and
(iii) will bear an appropriate restrictive legend setting forth the
statement contained in subparagraph (ii) above.
The Company shall not be required to sell or issue any Shares under any Option
if the issuance of such Shares would, in the judgment of the Company, constitute
or result in a violation by the Optionee or the Company of any provision of law
or regulation of any governmental agency. The Company at its discretion, may
require the optionee to sign, when exercising an Option, an investment letter
satisfactory to the Company.
6.2 Application of Funds. The funds received by the Company upon the
exercise of Options and otherwise under the Plan shall be used for general
corporate purposes as permitted by law.
6.3 Withholding of Taxes. The obligation of the Company to deliver
Shares upon the exercise of any Option shall be subject to any applicable
Federal, state and local tax withholding requirements.
<PAGE>
6.4 Governing Law. This Plan shall, to the maximum extent possible, be
governed by the laws of the State of New Jersey.
6.5 Employment Rights. The grant of an Option under this Plan shall not
impose on the Company or its subsidiary corporations any obligation to continue
to employ any optionee, and the right of the Company or its subsidiary
corporations to terminate the employment of any person shall not be diminished
or affected by reason of such grant of an Option.
ARTICLE 7
AMENDMENT AND TERMINATION
7.1 Authority of Board of Directors. Except as otherwise provided in
Section 7.2, the Board at any time, and from time to time, may suspend or
discontinue the Plan or amend it in any respect as the Board may deem
appropriate and in the best interests of the Company; provided, however, that no
such suspension, discontinuance or amendment shall materially impair the rights
of any holder of any Option granted under this Plan prior to such amendment,
suspension or termination, without the consent of such holder.
7.2 Shareholder Approval of Amendments. No amendment of this Plan shall
be made which would, without the approval of the shareholders holding at least a
majority of the outstanding shares of the Company voted at a meeting of such
shareholders: (a) materially increase the benefits accruing to participants
under the Plan; (b) increase the number of Shares that may be issued under the
Plan (except for adjustments permitted or required under Section 2.2 above); (c)
materially modify the requirements as to eligibility for participation in the
Plan; or (d) extend the term during which Options may be granted or exercised.
7.3 Termination. No Options may be granted after ten years after the
date on which this Plan was approved by the Board, provided, however, that the
Plan and all outstanding Options shall remain in effect until such Options have
expired or vested, as the case may be, or are terminated in accordance with the
Plan.
ARTICLE 8
SHAREHOLDER APPROVAL AND EFFECTIVE DATE
This Plan is subject to the approval of the holders of at least a
majority of the votes cast by the holders of shares entitled to vote thereon,
which approval shall be obtained at the annual shareholder's meeting following
the adoption of the Plan by the Board. If the shareholders shall not approve the
Plan as aforesaid, the Plan shall not be effective, and any and all actions
taken prior thereto shall be null and void or shall, if necessary, be deemed to
have been fully rescinded.
<PAGE>
NEW BRUNSWICK SCIENTIFIC CO., INC.
1991 NONQUALIFIED STOCK OPTION PLAN
ARTICLE 1
NAME AND PURPOSE
1.1 Name. The name of the stock option plan (the "Plan") shall be the
New Brunswick Scientific Co., Inc. 1991 Nonqualified Stock Option Plan.
1.2 Purpose. The Plan is intended to enable New Brunswick Scientific
Co., Inc. (the "Company") to attract and retain experienced and exceptional
executive employees with managerial and analytical talent, upon whom, in large
measure, the sustained progress, growth and profitability of the Company
depends. Accordingly, the Plan is intended to provide them with favorable
opportunities to purchase equity in the Company through the grant of
nonqualified stock options (the "Options"), thereby encouraging them to
contribute to the Company's future success and prosperity, and enhancing the
value of the Company for the benefit of its other share owners.
ARTICLE 2
SHARES SUBJECT TO THE PLAN
2.1 Number of Shares. The stock subject to options issued under this
Plan shall be shares of the Company's Common stock, par value $.0625 per share
(the "Shares"). The total amount of Shares with respect to which options may be
granted shall be 662,000 shares, subject to adjustment in accordance with the
provisions of Section 2.2. Shares issuable under the Plan shall be authorized
but unissued Shares of the Company, including treasury shares. If any Option
granted under the Plan expires or otherwise terminates, in whole or in part,
without having been exercised, the Shares subject to the unexercised portion of
such Option shall be available for the granting of Options under the Plan as
fully as if such Shares had never been subject to an Option.
2.2 Adjustments. The number of Shares that may be issued under the
Plan, as stated in Section 1, and the number of Shares issuable upon exercise of
outstanding Options under the Plan (as well as the exercise price per share
under such outstanding Options shall be equitably adjusted by the Committee
(referred to in Section 3.2) to reflect: (a) any stock dividend or stock split,
(b) any subdivision or combination of outstanding shares or (c) any other
reorganization or change in the stock or capital structure of the Company in
connection with which the Company issues additional shares of capital stock
without receiving any consideration therefor.
ARTICLE 3
ADMINISTRATION OF PLAN
3.1 Stock Options. As used in the Plan, the term "Options" or
"nonqualified stock options" means options that are not intended to qualify as
incentive stock options under Section 422A of the Internal Revenue Code of 1986,
as amended from time to time (the "Code").
3.2 Committee Authority in General. Except as otherwise provided below,
the Plan shall be administered by a Stock Option Committee (the "Committee")
appointed by the Board of Directors of the Company (the "Board"). The Committee
shall have full authority to establish, from time to time, such rules and
regulations, not inconsistent with the provisions of the Plan, for the proper
administration of the Plan, and to make such determinations and interpretations
under or in connection with the Plan and the Options granted hereunder, as it
deems necessary or advisable. All such rules, regulations, determinations and
interpretations shall be binding and conclusive upon the Company, its
stockholders, employees (including former employees), and directors, and any
related corporation, and upon their respective legal representatives,
beneficiaries, successors and assigns and upon all other persons claiming under
or through any of them.
3.3 Committee Members. The Committee shall be composed of al least two
(2) persons who are members of the Board of Directors. No member of the
Committee may receive any options under the Plan, and no member may have
received any such options for a period of at least one (1) year prior to his or
her election to serve on the Committee. The Board may from time to time remove
members from, or add members to, the Committee. The Board may on its own motion,
amend the requirements, for eligibility for service on the Committee as may be
reasonably required, in the judgment of the Board, in order to qualify each
member of the Committee as a "disinterested person," as defined in the
regulations of the Securities and Exchange Commission pertaining to Section
16(b) of the Securities Exchange Act of 1934.
3.4 Actions of the Committee. The Committee shall hold meetings at such
times and places as it may determine. A majority of the members of the Committee
shall constitute a quorum for the transaction of business, and a vote of the
majority of those members present at any meeting, or acts approved in writing by
a majority of the Committee, shall decide any question before the Committee.
<PAGE>
3.5 Exoneration. No member of the Board or of the Committee shall be
liable for any action or determination made in good faith with respect to the
Plan or any Option granted under this Plan, except those resulting from such
member's gross negligence or willful misconduct.
3.6 Indemnification. In addition to such other rights of
indemnification as they may have as members of the Board or the Committee, the
Company shall defend, indemnify and hold harmless the members of the Committee
against all costs and expenses reasonably incurred by them in connection with
any action, suit or proceeding to which they or any of them may be party by
reason of any action taken or failure to act under or in connection with the
Plan or any Option granted hereunder, and against all amounts paid or payable by
them in settlement thereof provided such settlement is approved by independent
legal counsel selected by the Company or paid or payable by them in satisfaction
of a judgment in any such action, suit or proceeding, except a judgment based
upon a finding of bad faith on the part of the Board or Committee member seeking
indemnification hereunder, provided that upon the institution of any such
action, suit or proceeding a Committee member shall, in writing, give the
Company notice thereof and an opportunity, at its own expense, to handle and
defend the same before such committee member undertakes to handle and defend it
on her or his own behalf.
ARTICLE 4
ELIGIBILITY
The persons eligible to participate in the Plan shall be executive,
managerial, or supervisory employees (except any employee who may be ineligible
as a result of his or her appointment to the Committee) of the Company and its
subsidiary companies who may be designated by the Committee. The persons
eligible to receive Options under the Plan are referred to in this Plan as
"Eligible Individuals." The Committee shall have the full discretion and
authority to determine the persons to whom Options shall be granted under the
Plan and to recommend the date of grant and the other conditions thereof,
subject to the express terms of this Plan.
ARTICLE 5
OPTION TERMS
5.1 Price of Options. The purchase price per Share (the "Option Price")
under each Option granted under the Plan shall be determined and fixed by the
Committee in its discretion, but shall not be less than the fair market value of
such Shares on the date of grant of such Option. The fair market value of a
Share on any day shall mean (a) the last reported closing price of a Share as
quoted by Nasdaq and reported in The Wall Street Journal (or other reputable
financial publication, in the event The Wall Street Journal is unavailable); or
(b) if at any time the Company's Common stock is not eligible for quotation on
Nasdaq, such other method of determining fair market value as shall be permitted
by the Code or the rules or regulations thereunder, and adopted by the Committee
from time to time.
5.2 Maximum Exercise Period. The Committee shall fix the term of all
Options, provided that such term shall not exceed ten years from the date of
grant of such Option (the "Expiration Date").
5.3 Installment Exercise. No Option may be exercised, in whole or part,
until one year after the date upon which such Options are granted (the "Grant
Date"). Options shall thereafter become exercisable in installments. Twenty
percent (20%) of the Options granted shall become exercisable one (1) year after
the Grant Date and twenty percent (20%) shall become exercisable each year
thereafter until all Options are exercisable at the end of five (5) years. An
Option may be exercised as to less than the full amount of Shares then available
for purchase under the Option, but must be exercised in multiples of full shares
of stock, rather than fractional shares. An option may not be exercised more
than ten times during the term of the Option.
5.4 Payment. The Option Price shall be payable in cash or by check,
bank draft, or postal or express money order. At the Committee's discretion, all
or part of the Option Price may be paid by delivery of shares of Common stock of
the Company having an aggregate fair market value equal to the portion of the
Option Price not otherwise satisfied in cash or by check. The Committee shall
determine acceptable methods for tendering shares of Common stock as payment
upon exercise of an Option and may impose such limitations and prohibitions on
the use of such stock to exercise an Option as it deems appropriate.
5.5 Method of Exercise. An Option, or portion of an Option, shall be
exercised by delivery of a written notice of exercise to the Company,
accompanied by payment in full of the purchase price for the Shares with respect
to which the Option is exercised. Until such Shares are issued, the holder of
the Option shall have none of the rights of a share owner. In its discretion,
the Committee may require that the exercise of an Option be conditioned upon the
execution by the optionee of a written election under Section 83(b) of the Code.
<PAGE>
5.6 Transferability. No Option shall be assignable or transferable by
an optionee otherwise than by will or by the laws of descent and distribution,
and during the lifetime of the optionee, the Option shall be exercisable only by
him, or in the event of his legal disability by his legal representative.
5.7 Termination of Employment. If an optionee ceases to be employed by
the Company for any reason other than death, voluntary retirement after
attaining age 65 or disability (as described in Section 5.9 below) prior to the
Expiration Date of any Options, such unexercised Option shall terminate as of
the dale of such termination of employment.
5.8 Death of Optionee. If an optionee dies while an employee of the
Company and if on the date of death an optionee holds an Option that is not
fully exercised, then for a period of six (6) months after the optionee's death
or the unexpired term of the Option, whichever is less, the Option may be
exercised by the executor or administrator of the optionee or by any person who
acquires the Option from the optionee by bequest or inheritance, to the extent
that the optionee could have exercised such Option on the date of his or her
death.
5.9 Retirement or Disability of Optionee. If an optionee ceases to be
employed by the Company or its subsidiary corporations by reason of voluntary
retirement after attaining the age of 65 or by reason of disability and if on
the date of termination of employment the optionee holds an Option that is not
fully exercised, then for a period of six months after the date of termination
of employment or the unexpired Option term, whichever is less, the Option may be
exercised to the extent that the optionee had the right to exercise such Option
as of the date of termination of employment. If such optionee dies within six
months after the date of termination of employment and if on the date of his
death he held an Option that is not fully exercised, then to the extent and for
the period that the optionee could have exercised the Option under this Section
5.9 had he survived, the Option may be exercised by the executor or
administrator of the optionee or by any person who acquires the Option from the
optionee by bequest or inheritance. A "disability" shall, for all purposes under
this plan, be defined as set forth in Section 105(d)(4) of the Internal Revenue
Code of 1986, as amended.
5.10 Option Agreement and Further Conditions. As soon as practicable
after the grant of an Option, each optionee shall enter into, and be bound by
the terms of, a nonqualified stock option agreement (the "Nonqualified Stock
Option Agreement") which shall state the number of Shares to which the Option
pertains. The Nonqualified Stock Option Agreement shall set forth such terms,
conditions and restrictions regarding the Option not inconsistent with the Plan
as the Committee shall determine. Without limiting the generality of the
foregoing, the Committee, in its discretion, may impose further conditions upon
the exercisability of Options and restrictions on transferability with respect
to Shares issued upon exercise of Options.
ARTICLE 6
MISCELLANEOUS PROVISIONS
6.1 Registration of Shares. The Company may, but shall not be obligated
to, register the Options or the Shares received upon exercise of an Option, or
both, with the Securities and Exchange Commission and any state securities law
commission or agency. In the absence of such registration, both the Options and
the Shares:
(i) will be issued only pursuant to an exemption from registration;
(ii) cannot be sold, pledged, transferred or otherwise disposed of in the
absence of an effective registration statement or an opinion of
counsel satisfactory to the Company that such registration is not
required; and
(iii) will bear an appropriate restrictive legend setting forth the
statement contained in subparagraph (ii) above.
The Company shall not be required to sell or issue any Shares under any
Option if the issuance of such Shares would, in the judgment of the Company,
constitute or result in a violation by the Optionee or the Company of any
provision of law or regulation of any governmental agency. The Company at its
discretion, may require the optionee to sign, when exercising an Option, an
investment letter satisfactory to the Company.
6.2 Application of Funds. The funds received by the Company upon the
exercise of Options and otherwise under the Plan shall be used for general
corporate purposes as permitted by law.
6.3 Withholding of Taxes. The obligation of the Company to deliver
Shares upon the exercise of any Option shall be subject to any applicable
Federal, state and local tax withholding requirements.
6.4 Governing Law. This Plan shall. to the maximum extent possible, be
governed by the laws of the State of New Jersey.
6.5 Employment Rights. The grant of an Option under this Plan shall not
impose on the Company or its subsidiary
<PAGE>
corporations any obligation to continue to employ any optionee, and the right
of the Company or its subsidiary corporations to terminate the employment of any
person shall not be diminished or affected by reason of such grant of an Option.
ARTICLE 7
AMENDMENT AND TERMINATION
7.1 Authority of Board of Directors. Except as otherwise provided in
Section 7.2, the Board at any time, and from time to time, may suspend or
discontinue the Plan or amend it in any respect as the Board may deem
appropriate and in the best interests of the Company; provided, however, that no
such suspension, discontinuance or amendment shall materially impair the rights
of any holder of any Option granted under this Plan prior to such amendment,
suspension or termination, without the consent of such holder.
7.2 Shareholder Approval of Amendments. No amendment of this Plan shall
be made which would, without the approval of the shareholders holding at least a
majority of the outstanding shares of the Company voted at a meeting of such
shareholders: (a) materially increase the benefits accruing to participants
under the Plan; (b) increase the number of Shares that may be issued under the
Plan (except for adjustments permitted or required under Section 2.2 above);
materially modify the requirements as to eligibility for participation in the
Plan; or (d) extend the term during which Options may be granted or exercised.
7.3 Termination. No Options may be granted after ten years after the
date on which this Plan was approved by the Board, provided, however, that the
Plan and all outstanding Options shall remain in effect until such Options have
expired or vested, as the case may be, or are terminated in accordance with the
Plan.
ARTICLE 8
SHAREHOLDER APPROVAL AND EFFECTIVE DATE
This Plan is subject to the approval of the holders of at least a
majority of the votes cast by the holders of shares entitled to vote thereon,
which approval shall be obtained at the annual shareholder's meeting following
the adoption of the Plan by the Board. If the shareholders shall not approve the
Plan as aforesaid, the Plan shall not be effective, and any and all actions
taken prior thereto shall be null and void or shall, if necessary, be deemed to
have been fully rescinded.
<PAGE>
September 3, 1997
New Brunswick Scientific Co., Inc.
44 Talmadge Road
P.O. Box 4005
Edison, NJ 08818-4005
Gentlemen:
We refer you to Amendment No. 1 to the Registration Statement on Form
S-8, File No. 33-16024, (as so amended, the "Registration Statement") under the
Securities Act of 1993, of New Brunswick Scientific Co., Inc. (the "Company")
pertaining to the offer and sale by the Company of up to 231,000 shares of the
Company's Common Stock, par value $.0625 per share (the "Shares") pursuant to
options granted from time to time under the Company's Employee Stock Purchase
Plan (the "Plan").
We have acted as counsel to the Company in connection with the
Registration Statement. In such capacity, we have examined the Registration
Statement, copies of the Plan, the Company's Certificate of Incorporation and
such other corporate records and documents as we have deemed necessary in order
to express the opinion set forth below.
Based upon the foregoing examination, it is our opinion that upon the
issuance from time to time of certificates evidencing the Shares and delivery
thereof in exchange for payment therefor in accordance with the Plan, such
Shares shall be validly issued, fully paid and nonassessable.
<PAGE>
New Brunswick Scientific Co., Inc.
September 2, 1997
Page 2
We hereby consent to the use of this opinion as an exhibit to the
Registration Statement and the reference to our firm in prospectus included in
such Registration Statement under the heading "Validity of Common Stock."
Very truly yours,
NORRIS, MCLAUGHLIN & MARCUS, P.A.
/s/ Norris, McLaughlin & Marcus
<PAGE>
The Board of Directors
New Brunswick Scientific Co., Inc.:
We consent to the use of our reports incorporated herein by reference
and to the reference to our firm under the heading "Experts" in the prospectus.
KPMG Peat Marwick LLP
/s/ KPMG Peat Marwick LLP
Short Hills, New Jersey
September 2, l997
